Citation Nr: 0216974
Decision Date: 11/22/02 Archive Date: 12/04/02
DOCKET NO. 95-07 657 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder characterized as
schizophrenia, latent type.
(The issue of entitlement to service connection for an
acquired psychiatric disorder characterized as
schizophrenia, latent type, will be addressed in a separate
decision.)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Counsel
INTRODUCTION
The veteran served on active service from January 1973 to
September 1973.
This case comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee. In August 1998, the Board remanded
the case to the RO for additional development. At present,
the case is once again before the Board for appellate
review.
The Board notes that, in the February 1995 substantive
appeal, the veteran requested a hearing before a traveling
member of the Board, and thus, the hearing was scheduled for
January 16, 1997. However, the veteran failed to report to
the scheduled hearing. As the record does not contain
further indication that the veteran has requested that the
hearing be rescheduled, the Board deems the veteran's
February 1995 request for a travel Board hearing withdrawn.
See 38 C.F.R. § 20.704 (2002).
Lastly, following a reopening of the veteran's claim as
discussed below and pursuant to authority granted by 67 Fed.
Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R.
§ 19.9(a)(2)), the Board is undertaking additional
development on the issue of service connection for an
acquired psychiatric disorder characterized as
schizophrenia, latent type. When the Board completes the
required development, it will notify the veteran as required
by Rule of Practice 903. 67 Fed. Reg. 3,099, 3,105 (Jan.
23, 2002) (codified at 38 C.F.R. § 20.903). After giving
the notice and reviewing the response to the notice, the
Board will prepare a separate decision addressing this
issue.
FINDINGS OF FACT
1. The VA has fulfilled its duty to assist the appellant by
obtaining and fully developing all relevant evidence
necessary for the equitable disposition of the issue
addressed in this decision.
2. In a May 1991 rating decision, the veteran was denied
service connection for an acquired psychiatric disorder
characterized as schizophrenia, latent type. The veteran
was informed of this decision and of his appellate rights
that same month via correspondence, but he did not file a
timely appeal with respect to this issue. This decision is
final.
3. The evidence associated with the claims file since the
May 1991 rating decision is, either by itself or in
connection with evidence already of record, so significant
that it must be considered to decide fairly the merits of
the veteran's claim of entitlement to service connection for
an acquired psychiatric disorder characterized as
schizophrenia, latent type.
CONCLUSIONS OF LAW
1. The unappealed May 1991 RO decision, which denied the
claim of service connection for an acquired psychiatric
disorder characterized as schizophrenia, latent type, is
final. 38 U.S.C.A. § 7105 (West 1991 & Supp. 2002); 38
C.F.R.
§§ 3.104, 20.1103 (2002).
2. The evidence received since the May 1991 rating decision
is new and material, and the claim of service connection for
an acquired psychiatric disorder characterized as
schizophrenia, latent type, is reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. §§ 3.156(a) (effective prior to
August 29, 2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
During the pendency of the appeal, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126) became effective. This
liberalizing legislation is applicable to all claims for VA
benefits, to include claims to reopen previously denied
claims of service connection. Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991). Besides eliminating the
requirement that a claimant submit evidence of a well-
grounded claim, it provides that VA will assist the claimant
in obtaining evidence necessary to substantiate a claim.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of information required
to substantiate a claim. The VCAA also provides for a
broader VA obligation to obtain relevant records and advise
a claimant of the status of those efforts, and contains an
enhanced requirement to provide a VA medical examination or
obtain a medical opinion in cases where such a procedure is
necessary to make a decision on a claim. Further, during
the pendency of this appeal, in August 2001, VA issued
regulations to implement the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a)). The amendments, which apply
only to claims governed by Part 3 of the Code of Federal
Regulations, were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a), which was made effective
August 29, 2001. While the VCAA and the regulations
implementing the VCAA provide in some circumstances for VA
to obtain an additional medical examination or opinion,
special provisions apply to claims to reopen finally
adjudicated claims filed after November 9, 2000 allowing
such development only if new and material evidence is
presented or secured, given that the claim was previously
denied.
In this regard, the Board observes that the VCAA appears to
have left intact the requirement that a claimant must first
present new and material evidence in order to reopen a
previously and finally denied claim under 38 U.S.C.A. § 5108
before the Board may determine whether the duty to assist is
fulfilled and proceeding to evaluate the merits of that
claim. It is specifically noted that nothing in the Act
shall be construed to require the Secretary to reopen a
claim that has been disallowed except when new and material
evidence is presented or secured, as described in 38
U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West Supp. 2002).
The Board acknowledges that the implementing regulations
modify the definition of new and material evidence and
provide for assistance to a claimant on claims to reopen.
See 66 Fed. Reg. at 45,630 (codified as amended at 38 C.F.R.
§§ 3.156(a), 3.159(c)). However, the regulation provisions
affecting the adjudication of claims to reopen a finally
decided claim are applicable only to claims received on or
after August 29, 2001. 66 Fed. Reg. at 45,620. Because the
veteran's claim to reopen the previously denied claim of
service connection for an acquired psychiatric disorder
characterized as schizophrenia, latent type, was received
prior to that date (per a VA form 21-4138 (Statement in
Support of Claim) received February 1994), those regulatory
provisions do not apply.
The Board finds no prejudice to the appellant in this case
by proceeding with the adjudication of the issue of whether
new and material evidence has been received to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder characterized as schizophrenia, latent
type. The RO has complied with the notice and duty to
assist provisions of the VCAA. Specifically, the veteran
was advised by the RO of the information required to
substantiate the claim on appeal. In this regard, the Board
notes that collectively, via the May 1994 rating decision,
the January 1995 statement of the case, the August 1998
Board remand, the September 1996, October 2000 and August
2002 supplemental statements of the case and RO
correspondence dated June 2002, the appellant was provided
with information regarding the evidence needed to
substantiate his claim. He was informed of the need to
submit new and material evidence sufficient to reopen the
previously denied claim, including evidence of a
nexus/aggravation between the claimed disorder and his
service. Additionally, in the August 2002 supplemental
statement of the case, the appellant was given specific
information with respect to the changes in the law pursuant
to the VCAA. As well, the appellant was given the
opportunity to identify additional relevant evidence that
may substantiate the claim, including via June 2002 and
November 2002 RO letters. Furthermore, following the August
1998 Board remand, additional argument and/or evidence was
incorporated into the claims file. The Board is not aware
of the existence of additional relevant evidence in
connection with the claim on appeal. Therefore, the Board
may proceed with its appellate review without prejudice to
the appellant. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)); Quartuccio v. Principi, 16 Vet. App. 183
(2002); Bernard v. Brown, 4 Vet. App. 384 (1993).
The requirement of submitting new and material evidence to
reopen a claim is a material legal issue that the Board is
required to address on appeal. Barnett v. Brown, 83 F.3d
1380, 1383-84 (Fed. Cir. 1996); see also Jackson v.
Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this regard,
in a May 1991 rating decision, the veteran was denied
service connection for an acquired psychiatric disorder
characterized as schizophrenia, latent type. The veteran
was informed of this decision and of his appellate rights in
a May 1991 letter, but he did not file a timely appeal with
respect to this issue. This decision is final. 38 U.S.C.A.
§ 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.104, 20.1103
(2002).
As previously noted, a claim based on the same factual basis
may not be considered. See 38 C.F.R. § 20.1103 (2002). The
exception to this rule is 38 U.S.C.A. § 5108 (West 1991),
which states, in part, that if new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim. See Thompson v.
Derwinski, 1 Vet. App. 251, 253 (1991).
Under 38 C.F.R. § 3.156(a) (effective prior to August 29,
2001), "new and material evidence" means evidence not
previously submitted to agency decisionmakers which bears
"directly and substantially" upon the specific matter under
consideration. Such evidence must be neither cumulative nor
redundant, and, by itself or in connection with evidence
previously assembled, such evidence must be "so significant
that it must be considered in order to fairly decide the
merits of the claim." See Hodge v. West, 155 F.3d 1356,
1363 (Fed. Cir. 1998).
The amended regulation, which is effective for claims filed
on or after August 29, 2001, separately defines "new" as not
previously submitted and "material" as relating to an
unestablished fact necessary to substantiate the claim. If
the evidence is new and material, the question becomes
whether the evidence raises a reasonable possibility of
substantiating the claim. 66 Fed. Reg. 45,620, 45,630 (Aug.
29, 2001)(codified as amended at 38 C.F.R. § 3.156(a)). In
this case, the Board notes that the provisions of 38 C.F.R.
§ 3.156(a), the version prior to the regulatory change, are
applicable in the veteran's case as the claim was filed
prior to August 29, 2001.
In this case, the evidence submitted since the May 1991
rating decision includes medical records from the
Chattanooga VA Medical Center (VAMC) dated from 1991 to 1994
describing the treatment the veteran received for
psychiatric symptomatology. Additionally, 1994 medical
records from the Valley Hospital show hospitalization due to
psychiatric symptoms, and provisional diagnoses of major
depression and alcohol abuse.
In August 1996, the veteran was examined by VA. The August
1996 VA examination report was subsequently amended via a
March 1997 statement due to minor errors. At the time of
the examination, the veteran was diagnosed with schizotypal
personality disorder, and in the opinion of the examiner,
the veteran's condition pre-existed his service and had had
only a normal and natural progression during his service.
However, a July 1998 statement from N. Tregubov, M.D.,
indicates that it is quite possible that the veteran's
diagnosed schizophrenic reaction, latent type, chronic, was
aggravated beyond the normal progression of the condition
during his nine months of service in the Air Force.
Lastly, the veteran was again examined by VA in February
1999. At that time, the veteran was diagnosed with mild
depression, not otherwise specified, and with mixed
personality disorder with various characteristics including
schizotypal personality disorder. The examiner noted that
it was not possible to comment or evaluated the veteran with
respect to service connection for the claimed chronic
psychiatric disorder above and beyond any deterioration.
The veteran's symptoms were in remission at this time, and
he had not been treated for the prior 2 years.
Upon a review of the evidence, the Board finds that,
although some of the evidence incorporated into the record
after the May 1991 rating decision is cumulative of
previously submitted evidence, the record also includes new
evidence which is not redundant or cumulative of other
evidence previously considered. As well, the Board finds
that the new evidence is material to the issue under
consideration. Specifically, the Board finds that the July
1998 statement from Dr. Tregubov indicates that it is quite
possible that the veteran's diagnosed schizophrenic
reaction, latent type, chronic, was aggravated beyond the
normal progression of the condition during his nine months
of service in the Air Force. Therefore, the additional
evidence is so significant that it must be considered in
order to fairly decide the merits of the claim.
Based on the foregoing, the Board finds that the recently
submitted evidence warrants a reopening of the veteran's
claim in that such evidence was not previously submitted to
agency decisionmakers, bears directly and substantially upon
the specific matter under consideration, is neither
cumulative nor redundant, and by itself or in connection
with evidence previously assembled is so significant that it
must be considered to fairly decide the merits of the claim.
Accordingly, the appellant's claim of service connection for
an acquired psychiatric disorder characterized as
schizophrenia, latent type, is reopened, and the appeal is
granted, to that extent only. 38 U.S.C.A. § 5108 (West
1991); 38 C.F.R. § 3.156(a) (effective prior to August 29,
2001). However, the evidence presented thus far does not
warrant a grant of service connection for an acquired
psychiatric disorder characterized as schizophrenia, latent
type, and in light of the Veterans Claims Assistance Act of
2000, further development of the case is necessary prior to
final adjudication. Specifically, as noted above, pursuant
to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23,
2002) (codified at 38 C.F.R. § 19.9(a)(2)), the Board is
undertaking additional development on the issue of service
connection.
When the Board completes the required development, it will
notify the appellant as required by Rule of Practice 903.
67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (codified at
38 C.F.R. § 20.903). After giving the notice and reviewing
the response to the notice, the Board will prepare a
separate decision addressing this issue.
ORDER
New and material evidence having been submitted, the claim
of service connection for an acquired psychiatric disorder
characterized as schizophrenia, latent type, is reopened;
the appeal is granted to this extent only.
A. BRYANT
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.